1. The TBOR and LEP Taxpayers: Case Examples Brooklyn Legal Services
Operationalizing Taxpayer Rights: IRS Efforts and Experiences of Lawyers who Represent Clients Pro Bono and at LITCs
The TBOR and LEP Taxpayers: Case Examples
Anna C. Tavis
Brooklyn Legal Services

2. The TBOR and LEP Taxpayers
I.R.C. 7803(a)(3)
(A): The right to be informed,
(B): The right to quality service,
(C): The right to pay no more than the correct amount of tax,
(D): The right to challenge the position of the Internal Revenue Service and be heard,
(E): The right to appeal a decision of the Internal Revenue Service in an independent forum,
(F) The right to finality
(G) The right to privacy,
(H) The right to confidentiality,
(I) The right to retain representation,
(J) The right to a fair and just tax system.

3. LEP Taxpayers and the Right to a Fair & Just Tax System
U.S. System is one of voluntary compliance
Opportunity for bringing recently arrived taxpayers into compliance and keeping them in compliance *if* treated fairly
Tax Contributions by ITIN filers
-In 2015, ITIN filers paid $23 billion in income taxes
Source: National Taxpayer Advocate’s 2015 Annual Report to Congress

4. LEP Taxpayers: Effects of Recent Legislation
Preventing American Tax Hikes (PATH) Act:
Several Provisions Affecting LEP/Immigrant Taxpayers
§32(K) expansion (EIC Ban expands to CTC and AOC)
Determination of negligence and/or recklessness
Math error authority
Denial of retroactive filing for credits
reliance on return preparers and importance of LITCs

5. PATH Legislation and the TBOR
Right to be Informed
Notice Requirements
Role of LITCs, CBOs, and Preparers in education and outreach on changes to the law
Right to Challenge the Position of the IRS and Be Heard
Math Error authority and procedural concerns
Right to a Fair and Just Tax System
Consideration of Individual Circumstances in imposing §32(k) ban; LEP barriers to participation in exam

6. PATH Act: Concerns Expansion of 32(k) 2-year ban:
Includes Earned Income Credit (EIC), Child/Additional Child Tax Credit (CTC), and American Opportunity Credit (AOC)
Will IRS assert the ban when someone retroactively files and claims EIC or CTC?
Doubly harmful to immigrant taxpayers
Math Error Authority:
Newly available for post (k) ban cases
Also implemented for denial of retroactive filing for credits
Note: The IRS does not have to use math error procedures (PATH Act § 208)

7. EIC Ban: Case Examples
The right to be informed: Mr. A and the hidden 32(k) ban
The right to a fair and just tax system: Ms. D and the imposition of ban due to reliance on return preparer
The right to challenge the position of the IRS and be heard: math error authority and recertification

8. PATH Act: Retroactive Filing
Two recent cases regarding §204 and §205 of PATH Act:
Family S: LEP and recently issued ITINs
Retroactive filing to claim CTC for terminally ill child
Reliance on return preparer
Math error authority
Family P: Granted Asylum and recently issued SSN
Retroactive filing to claim EITC
Reliance on VITA site return preparer

9. Pre-Wage Verification: Case Example
In 2018, IRS expanded pre-wage verification program
Previous iteration identified as a Most Serious Problem in NTA’s 2015 Annual Report to Congress
Family G: LEP permanent residents, wage earning couple with two USC qualifying children, filed late January 2018, claimed EIC
IRS did not complete wage verification of Wal-Mart W-2 in time, case converted to full exam

10. Pre-Wage Verification: TBOR Implicated
Right to a Fair and Just Tax System
Arbitrary full examination of family’s return
Family discouraged from claiming refundable credit next year, cannot afford to wait for refund, fearful of immigration consequences
Right to Finality
Delay of 9 months and counting on issuance of refund